Opinion
05-19-1808
Tatum and Wife v. Snidow
Wickham, for the plaintiffs in error, Call for the defendant in error.
This was a supersedeas granted by one of the Judges of this Court, to a judgment of the District Court held at the Sweet Springs, reversing a judgment of the County Court of Montgomery, rendered in favour of the plaintiffs in error.
A verdict was found for the plaintiffs, in an action of detinue, at the June term of Montgomery County Court, 1808; but no judgment was then entered. The defendant appealed to the District Court, where the appeal was docketed on the 29th of May, 1802; and while the cause was there depending, viz. in June, 1802, the County Court of Montgomery, reciting that it was through mistake of the clerk that no judgment had been entered on the verdict, directed one to be then entered, which was accordingly done; and the judgment so entered " was sent to the District Court to be added to and made a part of the record." The District Court acted upon this paper, and reversed the judgment of the County Court, upon the merits.
The only point considered by this Court was, whether the District Court had any jurisdiction of the cause; the appeal having been allowed before any judgment was entered on the verdict.
Judgment reversed.
Wickham, for the plaintiffs in error, contended that no cause was depending in the District Court, and therefore the appeal ought to have stood dismissed. An appeal can only be taken from the judgment or decree of a County Court. The District Courts can take no jurisdiction of causes decided in the County Courts, unless it be by appeals allowed by such County Courts from their own judgments, or by writs, of error or supersedeas awarded by the District Courts. There having been no judgment entered in this case, till long after the appeal was allowed, the District Court ought to have dismissed the appeal as improperly granted, and waited till a judgment had been entered in the County Court.
No argument can be drawn from the supposed consent of the parties, that this judgment should be made a part of the record, and that the cause should stand as if the appeal had been taken from that judgment; because an appellate Court can never take jurisdiction of an appeal unless it be regularly brought before them.
This objection is not a mere matter of form: it goes to affect the rights of the appellee; because, by allowing an appeal before any judgment is entered, he is deprived of his security on the appeal bond. It is impossible to suppose, that a bond given to prosecute an appeal from the judgment of a Court can be binding, when no judgment was entered till years afterwards. There was no appeal from the judgment last entered, which was the only judgment rendered by the County Court.
Call for the defendant in error. The objection that there was no appeal from the judgment last entered by the County Court, furnishes a plausible argument, which at first sight may receive some sanction from the decision of the Court in Freeland and Vaughan. In that case the clerk had misstated the verdict in the minutes, and the Court, at a subsequent term, permitted him to enter it correctly in the order-book. The ground of the Court's decision was, that a District Court could not amend its judgments entered in the order-book, because in that the judgments were drawn up in full, and being signed by the presiding judge, became a record. But the same rule does not apply to a County Court, where nothing is entered during the sitting of the Court but minutes of their proceedings, which are not considered as records till they are drawn up afterwards by the clerk. In this case the clerk was guilty of an omission in not recording the judgment. The Court could not be mistaken as to the entry of a judgment, because the appeal bond, which is part of the record, recites a judgment. After the amendment in the County Court, the District Court had a right to take up the record, and enter such judgment as the County Court ought to have rendered.
May, 1806, MS.
Absent Judge Lyons.
OPINION
Friday, May 27. The President pro tem. delivered the opinion of the Court, (absent JUDGE LYONS,) that the District Court ought to have dismissed the appeal, on the ground that it had been allowed by the County Court of Montgomery before any judgment had been rendered in the cause.
Judgment of the District Court reversed.